No Free Lunch, but Dinner and a Movie (and Contraceptives for Dessert)?
The panel at which this paper was delivered1was designed to explore the “aftermath” of the Supreme Court’s decision in Burwell v. Hobby Lobby Stores, Inc. The reaction to the Court’s decision was vitriolic, to say the least, but it is important to understand what the Court actually held in the Hobby Lobby case before assessing whether the vitriol was warranted. In Part I, I review the circumstances leading to passage of the Patient Protection and Affordable Care Act and the implementing regulations that were challenged in the Hobby Lobby case. I then summarize and assess the Court’s holding on the several contested points of law at issue in the case, concluding that the Court’s legal analysis was correct. In Part II, I review various reactions to the decision, both from those in the media (informal and formal) and in the legal academy, contending that the criticisms of the decision were both misplaced and disingenuous but that they nevertheless reveal something very important about the contemporary dispute in the United States over the very nature and purpose of government. In Part III, I explore some faulty premises of the Hobby Lobby litigation and several unanswered questions that should be of particular interest to those who share the “classical liberal” views of the sponsors of the Symposium.
The Patient Protection and Affordable Care Act (“PPACA”) was enacted by Congress in 2010 in what may now be the quintessential example of legislation as sausage-making—something better not seen in the making. Indeed, the abuse of process leading up to the passage of the PPACA is notorious. The bill was pushed through the Senate in a rare Christmas-eve vote in 2009, after the final votes necessary for passage were essentially “bought” with egregious provisions that violated the most basic premise that “law” is to be generally applicable. Nebraska’s senior Senator, for example, obtained for his State a guarantee, dubbed the “Cornhusker kickback,” that the federal government would pay the full cost of expanded Medicaid coverage for Nebraska in perpetuity, a guarantee not granted to any other state. And the price for obtaining the vote of Louisiana’s Senator, Mary Landrieu, dubbed the “Louisiana Purchase,” was intended to be $200 million in increased federal Medicaid funding for her State, but ended up being more than $4 billion in increased aid due to poor draftsmanship of the statutory subsection.
